McCullough v. State , 23 Tex. Ct. App. 620 ( 1887 )

Hurt, Judge.

This is a conviction for murder of the first degree, with the punishment of confinement for life in the penitentiary assessed. The State propounds that the case is one of murder of the first degree; defendant, that it is a homicide in self defense.

Appellant’s first and second assignments - of error, taken together, are that the court should have charged the reasonable doubt as to every particular matter constituting the material or principal issue in the given case. The only statement of this proposition is found in the following: “The court submitted a charge on the question of self defense, neglecting to apply the reasonable doubt,” and that “defendant sought to correct the omission by a special charge, which was refused by the court.”

In answer to this proposition we state: In King’s case, 19 Texas Court of Appeals, 558, the rule is thus stated by a majority of the members of the court: “As to reasonable doubt, if the charge applies this to the whole case, this will satisfy the demands of the law.” (See also Webb’s case, Id., 490.) Rock-hold’s case, 16 Texas Court of Appeals, 585, is not in point.

Under the fifth assignment the following proposition is submitted: “Testimony should not be excluded on a general objection, unless it is inadmissible for any purpose.” Under this proposition we condense the following statement: The State proved by several witnesses that deceased, just after the shooting, did not have a pistol. Appellant proposed to prove that deceased had a pistol on May 26 (the shooting occurring on June 38), and that Isaiah Foster had this pistol after the death of deceased.

Opinion delivered June 18, 1887.

That deceased had a pistol on May 36 has no possible bearing: on this case; nor has the fact that Foster was seen with this pistol after the death of Green. We are not informed as to what time Foster was seen with the pistol, nor from whom he procured it, nor how long after Green’s death, etc. Appellant insists that this proposed evidence tended to impeach Foster. For this purpose the evidence could not be used, for want of a predicate.

It was also contended that this evidence tended to corroborate Johnson and Jane Mitchell. This was not necessary, because they needed no such corroboration, the fact that Green had a pistol on the morning of the shooting being immaterial, under the facts of this case.

As has been said, this case presents two theories: murder of the first degree, and self defense. Upon each the learned judge charged the law clearly, and, we think, correctly. Counsel for appellant contend, however, that the verdict found is not warranted by the facts. We believe the evidence is amply sufficient.

The other objections, relating to the venire, we do not think necessary to discuss. The judgment is affirmed.

Affirmed.